ACTION ALERT:  Local Government Strongly Opposes H.R. 3557, American Broadband Deployment Act

Thurs., Sept. 28, 2023:   Today on behalf of the nation’s counties, cities, towns and villages, the National League of Cities (NLC), United States Conference of Mayors (USCM), National Association of Counties (NACo) and the National Association of Telecommunications Officers and Advisors (NATOA) have signed a joint letter “to express our deep concerns and strong opposition to H.R. 3557, the American Broadband Deployment Act of 2023.  H.R. 3557 deprives citizens and their local governments of the ability to preserve property rights and maintain public safety.”

Last Spring, the House E&C’s Communications and Technology Subcommittee held a hearing on a slew of individual bills – many of them attacking local authority -- without notice and/or local government input.  Ultimately, the 19 bills were rolled up into H.R. 3557 and packaged as the American Broadband Deployment Act of 2023. 

Ranking Member Frank Pallone, Cong. Dingell and Cong. Matsui were champions in advocating for local government and opposing preemption and 'deemed grant' language in both the Subcommittee and full Committee hearings, with Ranking Member Pallone and Reps. Ruiz, Dingell, Matsui, and Tonko offering their own amendments to eliminate or reduce these preemptions.

H.R. 3557 quickly passed through the Subcommittee and the Energy & Commerce Committee in short order and along partisan lines.  At that point, H.R. 3557 was referred to both the House Committee on Transportation and Infrastructure and the Committee on Natural Resources for further action.  Presumably, both Committees are now ‘waiving’ jurisdiction which allows for the bill to move through the Rules Committee.

H.R. 3557, the American Broadband Act of 2023, would preempt local authority to manage our public rights-of-way and public lands’ use for telecommunications infrastructure.  It also preempts local rights of way and franchise authority in a ‘giveaway’ to cable and telecommunications providers.

Today’s letter of opposition to H.R. 3557 from the National League of Cities (NLC), United States Conference of Mayors (USCM), National Association of Counties (NACo) and the National Association of Telecommunications Officers and Advisors (NATOA) has been sent to the legislative director in every House office, and the committee staff of the two referral committees.

NATOA has learned that the Energy & Commerce Committee’s Republican Majority has shared with Democratic Staff a draft committee report to go along with H.R. 3557.   This action could be the next step in a process for the bill to go to the Rules Committee and eventually the House floor sooner, not later. 

City, county, town and local governments should call their members of Congress and urge them to oppose H.R. 3557. This step is particularly important in communities where the incumbent is vulnerable, or your Representative is a former local elected official.  This bill has progressed solely along partisan lines.   Imagine the impact of a half-dozen House Majority members telling leadership that they are not prepared to vote on this bill without local government having the opportunity to explain why the legislation is not needed and federal overreach on local governance.

Talking points re H.R. 3557:

H.R. 3557 represents an unprecedented and dangerous usurpation of local governments’ authority to manage public rights-of-way and land use.  The bill favors cable, wireless and telecommunications providers.  The bill also waives historic preservation (NHPA) and environmental (NEPA) rules.

In return for these gifts, the bill imposes no obligations on cable, wireless and telecommunications companies to provide broadband to “unserved” and “underserved” Americans.

For local governments, it is troubling that the bill was reported out of Committee without any opportunity to hear from local government to explain not only why this legislation is not needed but how it will result in harmful preemptions and unconstitutional takings.

Local government members of the National Association of Counties (NACo), the National League of Cities (NLC), the U.S. Conference of Mayors (USCM) and the National Association of Telecommunications Officers and Advisors (NATOA), oppose heavy-handed federal overreach into local land use, permitting, and franchise negotiation decisions.  

The level of government closest to the people oppose H.R. 3557 as it:

1. Mandates that all local wireless siting decisions be “deemed granted” in impractical short time periods.  (Compare the Federal agencies’ 270 days to act, while locals must conduct all engineering and other reviews in as little as 60 days.  GLL mentioned Ray Baum Act – feds get fair market value.)
2. Provides no public safety protections for construction of these “deemed granted” facilities.   (Construction will proceed without safety inspection or traffic control.  (Does this mean skirting the periodic inspections of structural deployment, electrical work, etc.?)
3. Sets timelines that are impossible to meet; creates technical grounds for defeating incompleteness notices that would pause the shot clock; and requires a local government to draft, publish and deliver to an applicant, on the same day that the local governing body hears and votes on the application, a written denial decision. “All proceedings required by a State or local government or instrumentality thereof for the approval of the request” must be taken within these timelines.
4. Empowers providers to install facilities where they choose regardless of local zoning, thus eliminating the ability of local government to balance providers’ and neighbors’ interests and jeopardizing the ability of local governments to impose stealth or concealment factors.
5. Limits all local fees to a locality’s objectively reasonable costs. Unlike current FCC rules and safe harbor pricing, localities must justify their fees using a complex, burdensome rate-making formula.
6. Substitutes FCC for local federal district court as reviewing body for challenges to decisions, thus breaking promise made by Congress in 1996 that local governments would not be required to travel to Washington to defend local decisions.
7. Imposes new and similarly flawed timelines and “deemed granted” remedies on applications for telecommunications facilities.
8. Eliminates cable franchise renewals, thereby removing ability of state or local communities to enforce franchise obligations such as build-out, customer service, and PEG.
9. Grants a cable operator the unilateral right to terminate a franchise but creates no obligation to remove cable system from rights-of-way.
10. Affirmatively grants cable operators the right to provide non-cable services while prohibiting localities from imposing any fees on cable operators’ revenue from non-cable services.

As our federal agencies embark on the most ambitious one-time federal investment ever made in broadband infrastructure and adoption through the programs created by COVID relief programs and the Bipartisan Infrastructure Law, it is critical that we ensure the value of these funds is maximized. 

Excerpts from the National League of Cities (NLC), United States Conference of Mayors (USCM), National Association of Counties (NACo) and the National Association of Telecommunications Officers and Advisors (NATOA) joint letter:

“The proponents of this legislation have suggested that local governments are an impediment to successful broadband deployment, especially with the unprecedented levels of federal investment that are being made right now.  This simply isn’t true. Local governments are partners with the telecommunications industry, working together to safely, securely, and successfully deploy telecommunications infrastructure in our cities and counties in a timely and efficient manner.

“Perhaps most alarming about H.R. 3557 is the promotion of the myth that making these proposed changes to our rights-of-way authority will unlock lower prices and improve the quality of broadband offerings available in the United States. There’s no proof that any of these conditions happened in states where local governments were pre-empted.

“As the level of government closest to the people, we oppose heavy-handed federal overreach into local land use, permitting, and franchise negotiation decisions. Congress has historically recognized these rights in Sections 224, 253, and 332 of the Telecommunications Act. These authorities are critical to conduct responsible stewardship of public property, protect public safety, and preserve the rights of residents as consumers of broadband services and neighbors to the infrastructure that makes connectivity possible. “